29 Wis. 99 | Wis. | 1871
It is objected that tbe judgment in this case proceeds upon an .erroneous basis, and cannot stand; that it gives tbe plaintiff the title to tbe land, and yet deprives tbe vendor of tbe unpaid purchase money. It is insisted that, if tbe plaintiff seeks to rescind the contract on account of fraud practiced upon him by the defendant at tbe time of sale, then be must rescind in tolo, and cannot rescind in part and affirm in part. The complaint demands a judgment for sixty thousand dollars damages sustained in consequence of the fraud and misrepresentations made in regard to the land being rich and valuable
And tbe difficulty, therefore, which meets us at tbe outset and which appears to be insurmountable is, tbat tbe judgment does not provide for an absolute recission of tbe contract, but treats it as valid in part and void in part. Tbe plaintiff is permitted to bold on to tbe real estate, and at tbe same time have tbe notes and mortgage executed to secure tbe payment of a portion of tbe purchase money canceled for fraud. It seems to us tbat this cannot' be done'without a violation of well established principles. We do not wish to be understood as bolding that; upon tbe evidence, tbe plaintiff would be entitled to a rescission of tbe contract and a recovery of tbe amount paid, but merely tbat be cannot affirm and disaffirm tbe contract at tbe same time. This, ‘is well settled. Weed v. Page, 7 Wis., 503; Hollenbeck v. Shoyer, 16 do. 499; Costigan v. Hawkins, 22 Wis., 74 ; Akerly v. Vilas, 21 do. 88; Weeks v. Robie, 42 N. H., 316; Pearsall v. Chapin, 44 Penn., S. R., 9 ; Barton v. Beer, 35 Barb. S. C., 78. are a few of tbe very many Cases which might be cited in support of this doctriue.
Tbe law upon this subject is very clearly laid down by Beardsley J., in Massen v. Bovet, 1 Denio 69-74, as follows:
It results from these views that the judgment of the circuit court must be reversed, and the cause remanded for further proceedings.
By the Court. So ordered.